A Proper Understanding of “Necessary and Proper”

Nearly everyone who is concerned about constitutional government in the U.S. recognizes that Congress routinely oversteps its boundaries when making laws. The “Necessary and Proper” clause serves as one of the primary mechanisms used to justify this expansive exercise of federal power.

But what does this clause really mean, and what was it intended to do?

We acknowledge that Congress does have certain powers delegated to it in Article I of our Constitution. Likewise, it is generally understood that to exercise these powers, Congress is able to tap into other lesser powers as it fulfills its constitutional roles. Without this understanding, the Constitution’s delegation of powers would be nugatory.

When the founders crafted the Constitution, they also recognized this fact. After much debate, their response to this need was to incorporate the Necessary and Proper Clause into Article I, Sect. 8. By it, Congress may:

“…make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

As with many provisions in the Constitution, there is a good deal of debate about what this clause actually means. Strict constitutionalists stick to the original meaning, asserting that it is, and was intended to be a limit on legislative power. However, self-styled “progressives” and other advocates of expansive state intrusion contend that it grants virtually unlimited powers to Congress to legislate as it chooses.

Much of this debate is not based on actual reference to the context surrounding the clause itself. It is not sufficient to merely look at the words themselves, or even the debates about the clause presented in the constitutional convention’s records. That approach leads to the present impasse. To understand the reasoning that led to the clause, we must understand the legal context in which our founders operated in the late 18^th century.

As Robert Natelson has convincingly argued in his article on the subject[1], we must understand the origination of the clause within the context of “agency law.”

Agency law was a well-known concept within English common law dealing with the extent and character of powers delegated to an “agent” who acted on behalf of a “principal.” Agency law was familiar to legal commentators and lawyers (such as many of our founders were, including the ones who crafted the clause) throughout the colonies and in England herself.

In common law, agency was incorporated into jurisprudence as part of the doctrine of “incidents” and “principals.” As Natelson observes, an “incident” was a “right, power, or characteristic” of a “principle,” which was a larger legal concept or legally-defined entity. Essentially, an incident allowed an agent to carry out a mandate to which it was beholden by its legal principle.

For example, if the lord of a manor (the principle) granted agency powers to his steward for the upkeep of the manor, the steward was considered to have the implied right to exercise incidental powers (purchasing supplies, contracting for repairs, etc.) to pursue the goal of his agency, even if these powers were not specifically stated. The mandate from the lord to “care for my manor” implied that the steward could pursue certain unspecified actions to fulfill that goal.

The legal minds that crafted the clause and included it in the Constitution were intimately familiar with agency law due to their dealings with it in their private practices. Much of the argumentation surrounding the clause in the convention records indicate it was crafted with agency law in mind. It is within this context that we can understand the terminology of the clause and delve its original meaning.

By looking to agency law, we can derive what was meant by saying that a law was to be “necessary.” It meant that a law that Congress crafted using implied powers to carry out its express powers had to either be indispensible to the exercise of those powers (the power was impossible to exercise without the incidental power being applied) or else had to be “greatly prejudiced” without the implied power (the express power would be made very difficult). Further, “necessary” implies that if several options existed for Congress to exercise these implied powers – it should choose the one that was customary and already shown to fulfill congressional duties without innovations that could unlawfully expand the scope of Congress’ powers.

Additionally, that Congress has the power to make laws “necessary” to carry out expressed powers meant that Congress also had to give account of its actions by meeting fiduciary standards similar to those that oversaw the exercise of agency powers in private law, i.e. submission to oversight. This is also substantiated by other sections of Article I that require Congress to demonstrate transparency, such as the requirement to publish the congressional journal (Sect. 5) and the Consequence of Appropriations Clause (Sect. 9). This oversight was intended to be exercised by the president (through his veto power), the courts (through judicial review as originally understood), and by the people and the states (through elections and nullification). If the agent (Congress) claims its exercise of implied powers is “necessary,” then it must be able to prove it.

For exercise of an implied power to be considered “proper” in agency law, it must exist within the scope and authority of the agent’s mandate, it should be exercised in good faith, it had to demonstrate an undivided loyalty to the principal, it should be executed with diligence and care for the welfare of the principal, and was exercised in a way that allows it to be overseen by the principal.

We can see from these that to meet all of these criteria, the “and” found in the clause had to be conjunctive (laws intended to put congressional powers into effect must be both necessary and proper) rather than disjunctive (they could be either necessary or proper). From this, we also observe the original intention of the clause – to restrict the powers that Congress could exercise by placing stipulations on what qualifies as a “constitutional” law. Understanding the clause via agency law shows that it cannot be interpreted to grant Congress expansive, additional powers beyond those reflecting fidelity to the fiduciary trust placed in Congress by the Constitution.

To have any hope of restoring our constitutional system, we need to first understand the Constitution – in all its parts – as it was originally intended.

[1] Natelson, R.G., “The Agency Law Origins of the Necessary and Proper Clause,” Case Western Reserve Law Review, Vol. 55:2, pp. 243-322.